Family Law Time Limits on Property Claims

The Time Limits

The property settlement time limit for a married client runs from the divorce order taking effect. Separation alone does not start that 12-month period. A married couple who separated years ago but remain married can still seek property orders.

For a de facto claim under the Commonwealth scheme, the ordinary limit is two years from the relationship’s end. Establish the actual breakdown date before calculating the deadline. The court’s financial proceedings practice direction states both periods and the consent exception.

Section 44 of the Family Law Act 1975 contains the rules. Section 44(3) governs married claims, with the hardship restriction in s 44(4). Sections 44(5) and (6) govern de facto claims and leave.

The deadline is for commencing proceedings, not completing the settlement or receiving judgment. A consent-order application filed within time needs no out-of-time leave. Both parties’ consent to a late application is a separate statutory route. Consent to negotiations alone does not establish consent to late proceedings. For consent orders outside time, follow the court’s application guidance, including its requested out-of-time order and consent answer.

A divorce normally becomes final one month and one day after the hearing, as the court’s divorce guidance explains. Section 55 permits variations and addresses appeals. Calculate the property deadline from the effective date recorded in the order, rather than assuming the hearing date is the starting point.

Western Australian de facto property claims use the Family Court Act 1997 (WA), including s 205ZB. The Family Court of Western Australia also states a two-year period. Identify the governing jurisdiction before applying the Commonwealth leave provisions. Eligibility to bring a claim is a separate question covered in de facto property settlement.

How long after separation you can claim property in Australia depends on the relationship and the applicable law. A married client’s years of separation do not replace the divorce-based trigger. A de facto client’s deadline ordinarily runs from the relationship’s end, even if the parties continue paying a joint mortgage.

A fresh property claim that includes superannuation ordinarily has the same 12-month post-divorce filing limit. The clock starts when the divorce order takes effect, not when a fund pays benefits or the client retires. Outside time, establish consent or seek leave on the hardship and discretionary grounds below. Superannuation does not itself provide an extension.

Giving effect to an existing superannuation splitting order or agreement is a different task from starting a fresh claim. Obtain the sealed property orders or signed agreement and the divorce order. Check the proceedings’ commencement date, the split’s operative terms and evidence of service on the trustee, alongside the trustee’s response. The court’s superannuation guidance explains providing the sealed order to the trustee. An unimplemented split needs its implementation or enforcement route assessed before treating it as a new, late property application.

Applying for Leave Out of Time

Leave allows a late property claim to proceed when the statutory hardship threshold and the court’s discretionary assessment support it. Section 44(4)(a) requires satisfaction:

“that hardship would be caused to a party to the relevant marriage or a child if leave were not granted”

Section 44(6)(a) states the corresponding de facto threshold. Hardship requires more than losing the chance to start proceedings. Show a real prospective entitlement whose loss would cause hardship. Poverty is not a prerequisite.

Whitford & Whitford (1979) FLC 90-612 distinguishes that threshold from the decision to grant leave. Establishing hardship permits the court to exercise its discretion. It does not compel approval. The court considers the claim’s merits, the degree of hardship and the delay. The explanation and prejudice to the respondent also enter that assessment.

Prepare an affidavit that explains the whole period of delay and what happened when the client learned proceedings were needed. Connect the proposed claim to evidence of contributions and the parties’ financial circumstances. Give a supported picture of the property pool, meaning the assets and liabilities relevant to the proposed adjustment. Address likely litigation costs so the court can assess whether the claim has practical value.

Bank statements can support contribution evidence and show transfers or balances underlying the proposed pool. Property valuations and loan records supply different parts of that assessment. A large pool alone does not prove hardship, and a small pool does not automatically defeat leave. Once the timing issue is resolved, the section 79 property framework governs a married claim’s substantive assessment.

Leave Granted Despite a Long Delay

In Slocomb & Hedgewood [2015] FamCAFC 219, the Full Court granted leave after a delay it described as about 18 years. The former home remained jointly owned, with both parties liable under the mortgage. Hardship and a reasonable prospective claim were established.

The first judge had refused leave because of the explanation for delay and prejudice to the husband. The Full Court held that an inadequate explanation was one factor, rather than a separate barrier. Both parties had left their rights unresolved. The court re-exercised the discretion and allowed proceedings to begin.

Leave Refused After a Short Delay

Lester & Lester [2024] FedCFamC2F 1012 shows why being only days late does not secure leave. The husband failed to establish a reasonable prospective property or maintenance claim and resulting hardship. His evidence did not support an adjustment whose benefit justified the likely litigation costs.

The court also rejected his explanation for missing the deadline. It found prejudice to the wife in defending a claim with limited prospects. Leave was refused and the financial applications were dismissed. The judgment applies Whitford’s distinction between hardship and discretion.

A property settlement after 10 years remains possible in the right circumstances. For married clients, ten years since separation can still be within time if divorce has not occurred. Ten years since divorce, or since a de facto relationship ended, generally requires consent or leave. Long delay increases the need to explain inactivity and address lost records, changed circumstances and prejudice. Slocomb does not create a ten-year exception.

Dating Separation and the End of a Relationship

Bank statements help build a chronology of the end of shared finances. A joint account’s closure, wages redirected to a sole account or regular household transfers stopping can support the asserted separation date. Keep the transaction date beside the source statement and page.

Those events need context. Former partners can keep a joint mortgage account after separation, and a transfer can pay child support or an agreed expense. Continuing payments do not establish that the relationship continued. Compare the financial chronology with communications about separation and evidence of living arrangements.

This distinction changes the deadline most directly in de facto matters, where the two-year period starts at breakdown. In a hypothetical disputed chronology, shared household spending ends and separate accommodation payments begin six weeks later. Record both events and explain the interval. Do not substitute the last joint transaction for a finding about when the relationship ended.

FinTrace saves hours of manual statement review when you need to reconstruct that chronology across accounts. Its searchable Excel ledger brings transaction dates and source references together, alongside a readable findings report. Lawyers and forensic accountants can use the analysis to follow financial changes with the supporting PDF evidence already at hand.

Other Deadlines to Watch

Spousal and de facto maintenance applications ordinarily follow the same 12-month and two-year periods. Sections 44(4)(b) and (6)(b) also contain a maintenance-specific route concerning inability to self-support without an income-tested benefit at the period’s end. Assess maintenance separately from the property claim.

An application to set aside a binding financial agreement (BFA) is different from an application to divide property after it is set aside. The financial-agreement provisions supply the grounds and binding requirements. Section 44(3B) can allow married property proceedings within 12 months after the later of divorce taking effect or the agreement being overturned or found invalid. Section 44(5)(a)(ii) contains a corresponding 12-month alternative for Commonwealth de facto claims. See setting aside a binding financial agreement for that distinct task.

Section 44(3) excludes applications under s 79A to set aside existing married property orders. The court’s guidance on disputed financial proceedings distinguishes these applications from a fresh property claim. A set-aside application still needs its own statutory grounds. An appeal against an order follows a separate procedural timetable, so identify the proposed remedy before calculating time.

Settling Property Before the Divorce Order

Yes, a married couple can finalise property before divorce through consent orders, a binding financial agreement or a court application. Section 79 does not require a divorce order. The court’s property overview confirms that property proceedings can begin while the parties remain married.

Early settlement resolves financial ties while records and contribution evidence are easier to obtain. It can also settle responsibility for mortgage payments and other liabilities. Waiting until after divorce activates the 12-month filing period without resolving the property dispute.

Part VIIIA permits financial agreements during marriage under s 90C, subject to the binding requirements in s 90G. Each party needs independent legal advice meeting those requirements. The court’s financial-agreement guidance explains the distinction between an agreement and consent orders.

An informal arrangement about who keeps each asset does not provide the same finality as consent orders or a binding financial agreement. It can become disputed years later, as Slocomb illustrates. At the first meeting, record the applicable deadline and assess any existing arrangement. Put the intended settlement into an enforceable form while there is still time to act.